November 15, 2005

Alito Against Democracy

The release of Alito's 1985 Job Application is causing ripples because of his clear statement that "the Constitution does not protect the right to an abortion."

But forget Roe-- that's just confirmation of what everyone suspected, and I continue to believe (along with Ruth Bader Ginsburg) that Roe was not particularly helpful to abortion rights in the long-term.

But what is most striking about Alito's statement is this line:

In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.

"Reapportionment"?

For the non-lawyers out there, Alito meant he was against the Supreme Court decisions requiring that all state legislative districts be designed to guarantee "one person, one vote", instead of giving some districts with very few voters the same representation as urban districts with far more voters.

While I strongly believe that most judicial activism by the Warren Court was unneeded or even counterproductive for progressive goals since ongoing democratic mobilization was moving civil rights and feminist goals forward, the reapportionment cases-- Baker v. Carr and Reynolds v. Syms-- dealt with a problem that democratic voting inherently could not correct, namely the lack of real democracy in most state legislatures.

In Tennessee for example, the state had drawn up voting districts back in 1901 and had refused to redraw the district lines since then, meaning that all urban growth had been packed into a few districts where those voters were denied equal political power to voters in other districts with fewer voters and thus far more power per voter.

Substract Brown and Roe and little in modern American history would be different. But subtract Baker v. Carr and Reynolds v. Syms, and our state governments around the country would have remained bastions of racist and anti-democratic prejudice and power.

You can be against judicial action to override the democratic will of the people -- as I am -- and still recognize that where legislatures cease to reflect that will, courts have a reasonable role in stopping elite minorities from manipulating voting rules to establish a tyranny over the majority.

But Alito's supposed deference to the elected branches isn't about deference to democracy, but deference to the racist power of states in our history to oppress majority power-- which is what makes his professed hostility to affirmative action and federal power and his decisions against plaintiffs making claims of discrimination even more disturbing.